Mandamus on venue issue denied without prejudice in absence of sufficient record

In re Audrey Renee Hughes, No. (Tex.App.- Waco, Aug. 1, 2007)(Opinion by Justice Vance)(Before Chief Justice Gray, Justices Vance and Reyna)(venue mandamus)
Appeal from 82nd District Court of Robertson County

MEMORANDUM OPINION BY JUSTICE VANCE

After the trial court denied her motion to transfer the underlying suit (a motion to modify filed by real party Craig Davidson in a SAPCR) to Rockwall County, Relator Audrey Hughes filed this original proceeding, alleging that the trial court abused its discretion because the children principally resided in Rockwall County during the six months preceding the underlying suit. See Tex. Fam. Code Ann. § 155.201(b) (Vernon Supp. 2006).

Before the filing of Hughes’s motion to transfer, Davidson had filed the underlying motion to modify and served Hughes by substituted service. When Hughes did not timely answer, the trial court appointed an attorney ad litem for her and, upon hearing Davidson’s motion, entered a July 14, 2006 order removing Hughes as a joint managing conservator and appointing Davidson as sole managing conservator.

Hughes then answered and filed a motion for new trial, and on September 11, 2006, the trial court entered an agreed order granting Hughes’s motion for new trial, but that agreed order did not expressly address the July 14 order. On October 4, Hughes filed her motion to transfer, along with her “Original Counterpetition in Suit Affecting the Parent-Child Relationship,” which Davidson alleges was not properly served.

After Hughes brought this original proceeding for a writ of mandamus, Davidson filed a nonsuit of his motion to modify, which the trial court granted. Davidson contends that this proceeding is moot because no live pleading exists in the trial court; he alleges that Hughes’s counterpetition does not affect the mootness because it was not properly served.

Based on the record provided by the parties, we are unable to ascertain whether there exists an underlying suit that is subject to section 155.201(b). Nor are we able to ascertain what effect, if
any, the September 11 agreed order had on the July 14 order. For these reasons, we deny the petition for writ of mandamus without prejudice.


BILL VANCE
Justice

Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in the judgment only without a separate opinion.)

Petition denied
Opinion delivered and filed August 1, 2007